Introduction:
Article 21 of the Indian Constitution is a very broad concept which deals with the right to life and personal liberty. According to the constitution of India, life is considered to have started at the time of conception of the baby. The life of a person begins with his birth and comes to an end with death. This article deals with the rights and status of an unborn which is a right to life. A baby who is not yet born is called unborn. The word unborn is associated with the legal maxim ‘en ventre sa mere’. ‘In the mother’s womb’ is the meaning of this maxim.
Unborn child
The term unborn can further be divided on the basis of movement in the womb of the mother. According to IPC, an unborn child is of the following states:
- Unborn child simpliciter;
- The unborn child of a woman who is quick with child;
- An unborn child who is capable of being born.
Apart from this classification of unborn children and granting them certain rights and protection, there arise several duties along with them which has to be decided. The issues regarding them could either be relating to morality or the legal field. This article deals with the facts regarding whether an unborn child can be considered as a person having an inherent right to life or can constitutional personhood be granted to them.[1]
Protection – to them and from them
The Constitution of India grants protection to all the people against a crime as it the obligation of the State. This protection includes the unborn as well and they become eligible citizens of a state after being born. This protection to the unborn is enforced by providing protection to the mothers. Section 312 and 313 of IPC are certain provisions which deal with the offenses against the unborn child. Causing miscarriage is an offense according to section 312 of IPC and Causing abortion without the consent of the pregnant woman is also an offense stated in section 313 of IPC.
An intentional or negligent injury imposed on a child in the womb following which it dies after being born alive is subject to murder or manslaughter. Willful or negligent injury inflicted on a child in the womb by reason of which it dies after having been born alive amounts to murder or manslaughter.
Protection is granted to the life of an unborn child as well as its safe birth by law. If the child is not born alive then his legal personality and rights will have become void ab intio. Abortion and child destruction are not considered as crimes unless they result in the murder or manslaughter of the child after its born alive. In some countries, abortion is not considered a crime.[2]
Legal Rights and Personality
An unborn child is a natural person who has legal rights and legal personality. He can be given gifts and property can be settled to an unborn person by the creation of a trust or by vesting the property to some person to hold on behalf of the unborn child. The right to an unborn child regarding the ownership of property can be vested with some person who is in existence(in esse) till the child is born alive. The rule against perpetuity governs the proprietary rights of unborn children. Although the rights granted to an unborn child are contingent, they are to be recognized as persons.[3]
An unborn child can acquire the ownership of a corporeal or incorporeal property but it will not be endowed upon them unless they are born. It is a contingent ownership which means that a person will become an owner on the fulfillment of a condition. In the case of a child born posthumous, they will be entitled to the succession of the deceased father’s estate, such that the child is born alive and lives for a short period of time. An unborn child is vested with certain personal rights as well.
‘Nasciturus pro jam nato habetur’ is a maxim in law which means that a child or baby to be born is deemed or considered to be already born’. It is a friction of law to consider that an unborn child is already born so as to protect the laws which deal with their interests. [4]
International Scenario
The laws governing the countries vary an there is no unitary international scenario on the laws of an unborn child. The Universal Declaration of Human Rights and the International Convent on Civil and Political Rights which are the UN instruments emphasize the right to life to each and every individual. The Convention on Human Rights and Biomedicine headed or lead by the Council of Europe deal with the certainty of the unborn. This Convention restricts the creation of human developing life for the purpose of research.
The English licensing standards of fetus research are at a conflict with some other Conventions and provisions. The fetus research laws are insignificant to the interests of the unborn child. Abortion in the European Convention on Human Rights has offered acceptance to embrace the position of a child’s existence. The Strasbourg court has avoided or eluded from taking such cases by considering or labeling them as inadmissible.
In a case claiming that there was a breach of the unborn child according to the Abortion Act of 1969, the court held that abortion could be done only on grounds of necessity. [5]
Legal provisions in India
The legal provisions in India regarding an unborn child are as follows. According to Section 315 of IPC, an act which is done with an intent to prevent a child from being born alive or cause his death after his birth imposes with a punishment which may extend to ten years along with a fine.
According to Section 416 of the Criminal Procedure Code, if a pregnant woman is sentenced to death, the High Court will order it to be postponed or impose with a sentence of imprisonment.
Section 13 of the Indian Transfer of Property Act, 1882 states that the property can be transferred to an unborn child’s benefit by way of trust. Section 114 of the Indian Succession Act, 1925 deals with the rules of perpetuity. It states the creation of a prior interest on the property of an unborn child which will be deemed to be vested on the unborn as if it were born. According to Section 20 of the Hindu Succession Act,1956, any unborn child in the womb of the mother is considered or deemed to be existing for certain purposes. Under the Mitakshara law, an unborn child has an interest in the coparcenary property. According to the Mohammedan Law, a gift to an unborn person is void. [6]
Relevant Cases
According to the law of torts, an unborn child in the womb of the mother is considered as a person. In a Canadian case named Dobson v Dobson, the court held the prosecution of the mother who was negligent in acting responsibly for the prenatal injury of her child.
In an African case, the court held that a child born as a result of deformity due to the pre-injury to his mother can succeed in torts. According to the law of torts, both in England and in India, a baby cannot maintain a case for the action for injuries endured while in the womb of the mother(ventresa mere). In England, according to the Fatal Accident Act, 1846, damages can be recovered for the benefit of a posthumous child. [7]
Conclusion
Every human being in this world has a right to life. This is an inherent right and its available for all human beings. This right to life is protected by law. Law grants certain rights and protection to an unborn child. It imposes legal personality on an unborn child for certain purposes. There are several legal provisions in India which deals with an unborn child. Murder or the commission of manslaughter to an unborn child are serious offenses and are punishable by law. Abortion and causation of pre-natal injuries due to the negligence on part of the mother are also listed as offenses. However, the laws of countries differ. An unborn person or child has legal personality for certain purposes. Hence to conclude, an unborn child is considered as a person and is granted certain rights and protection by law.
References:
[1] Myneni, S. R. (2018). Jurisprudence (2nd ed., p. 576). Asia Law House. (Original work published 2004)
[2] Amit Verma. (2020, February 27). LEGAL STATUS: ANIMALS, DEAD MEN, AND UNBORN PERSON. FastForward Justice. https://fastforwardjustice.com/legal-status-animals-dead-men-and-unborn-person/
[3] Amit Verma. (2020, February 27). LEGAL STATUS: ANIMALS, DEAD MEN, AND UNBORN PERSON. FastForward Justice. https://fastforwardjustice.com/legal-status-animals-dead-men-and-unborn-person/
[4] Myneni, S. R. (2018). Jurisprudence (2nd ed., p. 576). Asia Law House. (Original work published 2004)
[5] Ranga, E., & Assistant, R. (2017). International Journal of Law Right to life of Foetus -Verification of laws in the context of female Foeticide. International Journal of Law, 3(2), 2455–2194.
[6] Amit Verma. (2020, February 27). LEGAL STATUS: ANIMALS, DEAD MEN, AND UNBORN PERSON. FastForward Justice. https://fastforwardjustice.com/legal-status-animals-dead-men-and-unborn-person/
[7] Ranga, E., & Assistant, R. (2017). International Journal of Law Right to life of Foetus -Verification of laws in the context of female Foeticide. International Journal of Law, 3(2), 2455–2194.
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